In recent decades, judges have increasingly incorporated juvenile brain science into legal rulings. Courts have acknowledged scientific facts, such as the typical human brain not fully developing until approximately twenty-six years old. Meanwhile, scientists have made significant strides in learning how early childhood trauma affects the physical structure and development of the brain. Should courts begin to take into account the impact of early childhood trauma upon the juvenile brain as well?
In this Article, I draw from a line of ground-breaking cases in the United States Supreme Court. The cases began to follow a pattern where the Court was increasingly recognizing brain science as significant to its legal rulings. Lower federal courts and state courts are following suit as well.
I posit that the next frontier should be trauma-informed and brain-informed judicial decision making. With the scientific knowledge that trauma rewires the brain physiologically, courts and the legal system need to take juvenile trauma into account when assessing cases. To support the development and incorporation of trauma science into the law, I provide research, such as a comprehensive longitudinal study from Sweden's Karolinska Institute, the Center for Disease Control's articulation of adverse childhood experiences (ACEs), and the trauma brain science work of Dr. Bruce Perry and Dr. Bessel van der Kolk.
Ultimately, I urge that childhood family trauma and its resultant brain development and rewiring be more fully incorporated into legal rulings, judicial opinions, and legislation.
About the Author
Melissa L. Breger, President William McKinley Distinguished Professor in Law and Public Policy, Albany Law School; The University of Michigan Law School, J.D., 1994. I owe thanks to my mentors, Professors Marty Guggenheim and Jane Spinak, for their feedback on this piece, as well to the thought-provoking insights garnered during various workshops and panels as I presented earlier iterations of this piece, such as the Spring 2022 Gathii faculty workshop at Albany Law School, the July 2022 Law and Society Global Conference in Lisbon, Portugal through IRC-13, and the February 2023 NYC Family Law Scholar workshop at Cardozo Law School, which allowed for discussion with many scholars, including Professors Lisa Grumet, Clare Ryan, Sarah Swan, Clare Huntington, Solangel Maldonado, Ed Stein, and Doron Dorfman. Thank you to the September 2021 audience who heard the very beginnings of this piece at the Howard A. Levine Award for Excellence in Juvenile Justice and Child Welfare through the New York State Bar Association. Tremendous thanks to the research assistance of Elizabeth Getz, Madisyn Scopteuolo-Camus, Kelly Krull, Charissa Kim, Madison Forsander, and Daniel Schmidt.
Citation
98 Tul. L. Rev. 259